Brownlee v. Rubaicaba
- William Orrick
- 3:19-cv-06111
- U.S. District Court · Northern District of California
- 3
In Brownlee v. Rubaicaba, Judge Orrick reopened the action and required Brownlee to explain why pauper status should not be barred.
Terrence Brownlee and his civil-rights action. He had to respond by March 16, 2020, or pay the full $400 filing fee to avoid the stated potential dismissal.
What happened
Terrence Brownlee, a state prisoner, brought a civil-rights lawsuit against D. Rubaicaba and others and asked to proceed without paying the filing fee upfront. The court had previously dismissed the action because his filing-fee application was deficient, but he later corrected those problems.
The court reopened the action and vacated the earlier dismissal and judgment. It ordered Brownlee to explain by March 16, 2020, why a law barring prisoners with three qualifying prior dismissals from proceeding without prepaying fees should not apply to him. The court identified three prior dismissals that it considered qualifying strikes and said Brownlee did not appear to face an immediate risk of serious physical injury. He could instead avoid dismissal by paying the full $400 filing fee by the deadline.
Judge William Orrick issued the order. The order did not yet deny Brownlee’s pauper application or dismiss the lawsuit; it gave him an opportunity to respond. It stated that failing to respond or pay the fee would result in dismissal without prejudice to bringing the claims in a new paid complaint.
The detailed version
- Brownlee v. Rubaicaba · No. 3:19-cv-06111
- William Orrick
- Feb. 18, 2020
Background
Terrence Brownlee, identified as a state prisoner and frequent federal litigant, filed a civil-rights action under 42 U.S.C. § 1983 against D. Rubaicaba and others. He also asked to proceed in forma pauperis, meaning without paying the filing fee upfront. The action had previously been dismissed because his fee application was deficient. The court stated that Brownlee had since corrected those deficiencies.
Three-strikes issue
Under 28 U.S.C. § 1915(g), a prisoner generally may not proceed without prepaying the filing fee if, on three or more prior occasions while incarcerated or detained, the prisoner brought an action or appeal that was dismissed as frivolous, malicious, or for failure to state a claim. An exception applies when the prisoner is under imminent danger of serious physical injury.
The court identified three prior Brownlee actions that it said were dismissed for failure to state a claim: Brownlee v. Hoffman, No. 2:00-cv-02666-LKK-JFM; Brownlee v. Smith, No. 2:03-cv-00746-DFL-DAD; and Brownlee v. Armoskus, No. 2:07-cv-02040-KJD-PAL. The court stated that the Ninth Circuit regards those three cases as strikes. It also stated that Brownlee did not appear to be under imminent danger of serious physical injury.
Order
The court ordered Brownlee to show cause—meaning to explain—by March 16, 2020, why his pauper status should not be denied and why the action should not be dismissed under § 1915(g). He was required to label his filing “RESPONSE TO ORDER TO SHOW CAUSE.” As an alternative, he could avoid dismissal by paying the full $400 filing fee by that date.
The court stated that failure to respond or failure to pay the fee by March 16, 2020, would result in dismissal of the action without prejudice to bringing the claims in a new paid complaint. The court did not, in this order, finally deny pauper status or dismiss the action on the three-strikes ground.
Disposition
The action was REOPENED. The court directed the Clerk to modify the docket, and it VACATED the prior judgment and order of dismissal. The order to show cause remained pending. Judge William Orrick signed the order on February 18, 2020.
Read the full 3-page opinion on CourtListener, the free public archive maintained by the Free Law Project.